NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1301-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ENDY ROLANDO CRUZ CRUZ, a/k/a GUSTAV GONZALEZ, GUSTAVO MORALES, and GUSTAVO MORALESGONZALEZ,
Defendant-Appellant. _______________________________
Argued February 26, 2024 – Decided March 15, 2024
Before Judges Sabatino, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 2-22.
Elizabeth M. Trinidad argued the cause for appellant (Trinidad Law Office, LLC, attorneys; Elizabeth M. Trinidad, on the briefs).
Jeffrey Nicholas Krachun, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Jeffrey Nicholas Krachun, of counsel and on the brief).
PER CURIAM
Defendant Endy Rolando Cruz Cruz appeals from a November 16, 2022
Law Division order upholding his municipal court convictions and sentence of
a six-month suspension of driving privileges with associated fines and court
costs. We affirm in part, vacate in part, and remand for proceedings consistent
with this opinion.
I.
The only witness to testify at trial was New Jersey State Police Trooper
Quanzell Lambert. He testified that on October 11, 2019, he was in uniform and
in a marked patrol car stationed along Route 49 in Fairfield Township when he
observed a vehicle speeding and failing to maintain its lane. Trooper Lambert
initiated a traffic stop and approached the vehicle. He identified himself as a
State Police Trooper and asked the driver for identification and other documents.
Trooper Lambert testified he observed "a little language barrier," however,
defendant "could understand some. It was pretty broken, but he understood
some things and I was trying to speak in Spanish as best I could to get him to
understand."
A-1301-22 2 Trooper Lambert testified defendant produced identification from Mexico
but no proof of a valid driver's license. Suspecting defendant was intoxicated
because of his behavior and physical demeanor, Trooper Lambert instructed
defendant to exit the vehicle and perform field sobriety tests. During the testing,
Trooper Lambert determined defendant failed and should be placed under arrest.
At the end of testing, Trooper Lambert instructed defendant to turn around to
complete another test, and when he did, Trooper Lambert grabbed defendant's
hands and placed them behind his back to handcuff him. At that time, defendant
broke the officer's grip and turned around to face him. Trooper Lambert then
placed defendant face down on the hood and brought his hands behind his back
to handcuff him. Trooper Lambert testified the action of breaking his grip was
the basis for the resisting arrest charge. He also testified after defendant was
handcuffed and searched, defendant used his torso and legs to push back against
Trooper Lambert to avoid being placed in the patrol car.
The State then played footage from the patrol car's dashboard camera,
which was entered into evidence as S-3. The dashcam video captured Trooper
Lambert identifying himself to the car's occupants as a police officer and
defendant responding, "No English." Trooper Lambert then attempted to ask
defendant if he had been drinking, using both English and the Spanish word
A-1301-22 3 "cerveza" ("beer"), to which defendant responded in the negative. The video
showed Trooper Lambert administering four field sobriety tests in front of
defendant's car. Defendant responded to some of Trooper Lambert's instructions
and questions by speaking Spanish, "No entiendo" ("I don't understand") or with,
"No English. Sorry." The video shows Trooper Lambert physically
demonstrating some of the field sobriety tests to defendant.
Trooper Lambert then instructed defendant, "Turn around. Next test, turn
around." As defendant turned around, on his own he raised both hands over his
head. Trooper Lambert then took both defendant's hands into his hands and
started to pull them down behind defendant's back to defendant's waist area,
while simultaneously saying "move your hands behind your back." As he moved
defendant's hands down, defendant broke the grip, turned to face Trooper
Lambert and asked in Spanish, "Qué pasó?" ("What happened?"). Trooper
Lambert said, "Yo, yo, yo, yo. Hands behind your back. Put your hands behind
your back." In order to secure defendant, Trooper Lambert turned him around,
placed him over the hood of the car, unclipped his handcuffs, and handcuffed
him without further incident. As the handcuffs were being placed on defendant,
he told his passenger, in Spanish, to call her sister. After defendant was
A-1301-22 4 handcuffed, he began asking Trooper Lambert for "abogado" ("lawyer") while
also repeating, "No English."
The video shows Trooper Lambert escorted defendant to the area outside
the rear passenger door of his patrol car. From this point, both Trooper Lambert
and defendant were outside the view of the dashcam, but the microphone
attached to Trooper Lambert's body-worn camera captured the audio of their
interactions. While continuing to ask for a lawyer, defendant told Trooper
Lambert, "Hey, hey, mi mujer? Mi mujer, okay? Mi mujer?" ("my woman") to
which Trooper Lambert responded, "You're making it harder than it needs to
be."
The dashcam captured defendant's passenger opening her car door, taking
out her phone, and attempting to communicate with defendant and Trooper
Lambert. She told Trooper Lambert, in English, the person on the phone was
her sister.1 Trooper Lambert instructed her to get back in the vehicle, which she
did. However, she soon stood up from the vehicle again and remained by her
open door.
1 Other footage from S-3 shows the passenger's family member later arrived and served as a translator between the police officers, passenger, and defendant.
A-1301-22 5 Approximately five minutes after the handcuffing, the audio recording
captured the opening of the patrol car door. Defendant again asked for an
attorney, and Trooper Lambert can be heard saying, "Get in the car, bro."
Defendant can be heard calling loudly to the passenger. The passenger walked
away from the car, still on the phone, and out of view of the dashcam. The audio
recording captures loud, overlapping, and repeating conversations: Trooper
Lambert telling the passenger to get back in the vehicle, the passenger telling
Trooper Lambert, "My sister, okay?" and defendant calling the passenger's
name2 and telling her, "Graba la video! Graba!" ("Record a video! Record!").
The dashcam shows the passenger briefly returning to the car, but then re-
approaching Trooper Lambert and defendant. The dashcam appears to shake
slightly for approximately thirty seconds before the audio captures the sound of
the patrol car door closing.
Trooper Lambert testified during that portion of the recording, in which
neither he nor defendant were visible, and in which the passenger moved in and
out of view, he was trying to place defendant into his patrol car, but defendant
physically resisted those efforts. Trooper Lambert testified defendant "was
2 The passenger's name is not reflected in the record, but in the recording, defendant addresses her by the common nickname "Flaca." A-1301-22 6 using his feet and legs, his torso, to like stop me from . . . putting him in the
vehicle." Trooper Lambert's body-worn camera was knocked from his person
as he placed defendant in the car. Trooper Lambert testified because the
passenger was approaching, he "forcibly pushed [defendant] in the vehicle just
in case [the passenger] got a weapon or anything . . . ."
On cross-examination, Trooper Lambert was asked whether he ever told
defendant he was under arrest. Trooper Lambert testified, "I did, ma'am. I never
got to get it fully out. I said your (sic) under arrest, and that's when he pulled
away." After the dashcam video was replayed a second time, the following
ensued:
[DEFENSE COUNSEL]: So you never said the word arrest, did you, Trooper?
….
[LAMBERT]: I did. I just didn't fully – what did you say? It's on the – whatever is said on there, because like you said, it was vehicles flying by.
There was a lot of other things going on. You might have not fully heard the word come out of my mouth but I – you could hear me advising him he was under arrest and he's breaking my grip.
Defense counsel also asked, "when you wanted [defendant] to turn around,
he turned – for what you said was the last test; right? . . . The next test. You
said next test." Trooper Lambert replied, "Yes, ma'am." He explained:
A-1301-22 7 Ma'am, so I do that so people when – what I do, as far as I say that because I don't want people to freak out when I sa[y] they're under arrest. So I – if they're under the influence, they'll just, oh, I got another test. I'm doing well.
And then I'll put their hands behind their back and then I'll place them under arrest and tell them they're under arrest. I don't do that as a test to trick. It's more of to say for my safety, so they don't overreact because a lot of people don't want to hear that they're being placed under arrest.
Trooper Lambert also conceded he communicated through physical gestures
how he wanted defendant to complete the tests.
On redirect, Trooper Lambert was asked whether defendant knew he was
being placed under arrest, to which Trooper Lambert testified, "[t]hat's
unknown" and "[i]t was up to him." Trooper Lambert also testified his placing
handcuffs on defendant's wrists was a physical cue to alert defendant he was
being placed under arrest.
Defendant was ultimately issued citations for speeding, N.J.S.A. 39:4-98;
driving without a license, N.J.S.A. 39:3-10; and obstruction of windshield for
vision, N.J.S.A. 39:3-74; as well as a summons for two disorderly persons
offenses, resisting arrest, N.J.S.A. 2C:29-2(a)(1), and obstruction of
administration of justice, N.J.S.A. 2C:29-1(a). Trooper Lambert testified he did
A-1301-22 8 not issue a ticket for driving while intoxicated ("DWI") because an alcohol
breath test reflected a blood alcohol concentration of "double zero."
The defense did not call any witnesses. After closing arguments, the
municipal court judge found defendant guilty of the motor vehicle violations:
speeding, driving without a driver's license, and driving with an obstructed view.
The court also found defendant guilty of resisting arrest and obstruction of
justice. As to the disorderly persons resisting arrest charge, the court found an
adequate basis for Trooper Lambert to have arrested defendant for DWI. As to
whether defendant understood the nature of the interaction to be an arrest, the
court remarked:
I think there are some things that are just universal in modern society that require no language understanding . . . [including] when an officer is in uniform is going to put you under arrest. That's pretty much a universal cultural understanding when an officer puts his hands on you with handcuffs, that you are under arrest. The court found defendant's repetition of the word "abogado," the Spanish
word for "lawyer," as well as defendant's responsiveness to some of Trooper
Lambert's instructions, indicated his understanding he was being arrested. The
municipal court judge then imposed fines and costs totaling $1,704, including a
$507 penalty for driving without a license, and $350 for each disorderly persons
A-1301-22 9 charge. Additionally, defendant's driving privileges were suspended for six
months.
Defendant appealed his convictions and sentence for a trial de novo before
the Law Division. Defendant argued the municipal court judge's findings were
inconsistent because the court found both that Trooper Lambert's instructions to
turn around were a ploy to make defendant believe he was undergoing a fifth
field sobriety test, and that Trooper Lambert had provided sufficient warning
defendant was being placed under arrest. Defendant also argued the law should
not be interpreted to place expectations on arrestees based on gestures and
nonverbal conduct alone, as those may not be sufficient to give rise to the
knowledge an arrest is taking place. Defendant referenced federal guidelines
for law enforcement communicating with those of limited English-language
proficiency, which defendant argued were binding on New Jersey law
enforcement officers.
Defendant also maintained the statute for resisting arrest requires a clear
announcement an arrest is taking place, and asking for an attorney should not be
found tantamount to knowledge of an arrest. In defendant's view, the State had
not proven beyond a reasonable doubt the fact of the impending arrest had been
communicated to the defendant in a manner a reasonable person in his position
A-1301-22 10 would understand. Defendant also argued because the word "arrest" was not
audible on the video, it was not shown beyond a reasonable doubt that he heard
any announcement. Defendant also argued the maximum penalty for driving
without a license was disproportionate and imposed without making the
requisite individualized finding of aggravating and mitigating factors.
In a written opinion rendered on November 16, 2022, with an
accompanying order, the Law Division judge upheld defendant's convictions
and sentence. The court found the record substantiated the municipal court's
findings as to defendant's sufficient understanding of the circumstances. While
the court acknowledged the recording did not capture Trooper Lambert stating,
"you are under arrest," it held defendant's "understanding of his arrest did not
have to derive solely from verbal understanding" and his understanding could
have derived from limited English understanding, body language, physical
gestures, and Trooper Lambert's actions, all which demonstrated Lambert's
intent to arrest defendant. The judge rejected defendant's reliance on State v.
Kane, 303 N.J. Super. 167, 182 (App. Div. 1997), and State v. Marquez, 202
N.J. 485, 508 (2010), as both legally and factually distinguishable , and found
the State carried its burden to prove defendant guilty of both resisting arrest and
obstructing administration of law beyond a reasonable doubt.
A-1301-22 11 The imposition of a $507 penalty for driving without a license was
affirmed, and consequently defendant's argument the fine was disproportionate
to the disorderly persons fines was rejected. The Law Division judge also held
the municipal court judge sufficiently placed his reasons for the sentence on the
record.
This appeal follows with defendant making the following arguments:
POINT I THE TRIAL COURT MISUNDERSTANDS STATE V. KANE, 303 N.J. SUPER. 167 (APP. DIV. 1997), GIVEN THAT THE RELEVANT PORTIONS OF KANE –RELATING TO THE ANNOUNCEMENT REQUIREMENTS FOR A CONVICTION UNDER [N.J.S.A.] 2C:29-2 (RESISTING ARREST)— DO NOT HINGE ON WHETHER THE UNDERLYING ARREST WAS LAWFUL OR NOT.
POINT II THE TRIAL COURT ERRED BY FINDING THAT STATE v. MARQUEZ, 202 NJ. 485 (2010) "HAS NO RELATION TO APPELLANT'S CASE" AND IT ERRED BY DISTINGUISHING MARQUEZ SOLELY ON THE BASIS OF MR. MARQUEZ SPEAKING NO ENGLISH WHATSOEVER.
POINT III
THE TRIAL COURT ERRED WHEN IT FOUND THAT ASKING FOR AN ATTORNEY IS TANTAMOUNT TO HAVING KNOWLEDGE OF AN ARREST OF ONE'S SELF, EITHER ABOUT TO OCCUR OR HAVING ALREADY OCCURRED.
A-1301-22 12 POINT IV THE TRIAL COURT ERRED WHEN IT IMPLIED THAT BEING A POLICE OFFICER, UNIFORMED [AND] ON DUTY, PROVIDED A SUFFICIENT LEGAL BASIS FOR TROOPER LAMBERT TO BE ABLE TO ARREST [DEFENDANT] AND THEN PUNISH HIM FOR HIS NATURAL CONFUSION & FEARFUL REACTION. POINT V
IN LIGHT OF THE TWO TITLE 2C CHARGES, UNDER A TOTALITY OF THE CIRCUMSTANCES, THE TRIAL COURT ERRED WHEN IT DISMISSED OUT OF HAND THE RELEVANCE OF [DEFENDANT] NOT HAVING BEEN CHARGED WITH DUI AS A RESULT OF HIS WARRANTLESS ARREST IN OCTOBER 2019.
POINT VI
THE TRIAL COURT COMMITTED LEGAL ERROR BY UPHOLDING THE FINDINGS, REACHED BELOW, THAT AN "ARREST BY IMPLICATION" (VIA PHYSICAL PRESENCE AND NON-VERBAL ACTIONS) IS SUFFICIENT FOR A CONVICTION TO LIE UNDER [N.J.S.A.] 2C:29-l(a) [AND] 2C:29-2(a)(l), THAT IS: THE RESISTING ARREST & OBSTRUCTION OF JUSTICE STATUTES.
POINT VII THE TRIAL COURT INCORRECTLY FOUND THAT [DEFENDANT] HAS ARGUED THAT HE "UNDERSTOOD NOTHING" SAID TO HIM IN ENGLISH, WHEN IN FACT HE HAS ARGUED HE IS "LEP" (= LIMITED ENGLISH PROFICIENT).
A-1301-22 13 POINT VIII [DEFENDANT] REITERATES THAT MAXIMUM PENALTIES COULD NOT HAVE BEEN IMPOSED ON HIM FOR VIOLATING [N.J.S.A.] 39:3-10 WITHOUT AN INDIVIDUALIZED ASSESSMENT, AND ARGUES THE LAW DIVISION COMMITTED GROSS LEGAL ERROR BY CLAIMING THAT "BEING CONVICTED" WAS BASIS ENOUGH FOR SENTENCING [DEFENDANT] TO A SUSPENSION OF PRIVILEGES AND MAXIMUM ALLOWABLE FINE.
II.
Appellate review of a de novo conviction in the Law Division, following
a municipal court appeal, is "exceedingly narrow." State v. Locurto, 157 N.J.
463, 470 (1999). We "focus[] on whether there is 'sufficient credible evidence
. . . in the record' to support the trial court's findings." State v. Robertson, 228
N.J. 138, 148 (2017) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Under
the "two-court rule," we "ordinarily should not undertake to alter concurrent
findings of facts and credibility determinations made by two lower courts absent
a very obvious and exceptional showing of error." Id. at 148 (quoting Locurto,
157 N.J. at 474). This deferential standard applies to a trial court's fact-finding
based on video evidence. State v. McNeil-Thomas, 238 N.J. 256, 272 (2019).
Appellate review of a sentencing court's determination is guided by an
abuse of discretion standard. State v. Torres, 246 N.J. 272 (2021). Such
A-1301-22 14 deference applies so long as "the trial judge follows the Code and the basic
precepts that channel sentencing discretion." State v. Trinidad, 241 N.J. 425,
453 (2020) (quoting State v. Case, 220 N.J. 49, 65 (2014)).
A.
Defendant argues his respective convictions of resisting arrest and
obstruction of justice were improper due to the Law Division's misapplication
of Kane, 303 N.J. Super. at 167, and State v. Branch, 301 N.J. Super. 307 (App.
Div. 1997). Defendant first posits under Kane, law enforcement officers must
verbally announce their intent to arrest prior to an arrest for a conviction for
resisting arrest to stand. In defendant's view, the State had not proven beyond a
reasonable doubt the fact of the impending arrest had been communicated to
defendant in a manner a reasonable person would understand.
The resisting arrest statute provides, "Except as provided in paragraph (3)
[detailing the bases for a third-degree offense], a person is guilty of a disorderly
persons offense if he purposely prevents or attempts to prevent a law
enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1) (emphasis
added). After delineating the different levels of this offense, the statute
continues, "It is not a defense to a prosecution under this subsection that the law
enforcement officer was acting unlawfully in making the arrest, provided he was
A-1301-22 15 acting under the color of his official authority and provided the law enforcement
officer announces his intention to arrest prior to the resistance." N.J.S.A.
2C:29-2(a) (emphases added).
A conviction for obstructing administration of law also requires the State
to prove a defendant acted purposely:
A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.
[N.J.S.A. 2C:29-1 (a) (emphasis added).]
This level of culpability is defined as follows:
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. [N.J.S.A. 2C:2-2(b)(1) (emphasis added).]
In Kane, a man attended an official Congressional hearing being held in
Manville. 303 N.J. Super. at 169. After he repeatedly attempted to address the
committee chair from the crowd, "four or five policemen who were in attendance
to maintain order seized [Kane], carried him out, handcuffed him, and took him
A-1301-22 16 to police headquarters where he was charged." Id. at 169-70. In municipal
court, an officer testified he "advised [the defendant] he was under arrest,"
although Kane denied any officer said anything to him before removing him. Id.
at 170-71. The municipal court judge found that after ignoring the police
officers' instructions, "defendant was effectively put under arrest." Id. at 171.
The case was tried de novo before a Law Division judge who reviewed video
footage of the meeting. The judge found the committee chair "told the police to
'escort the defendant out'" which was sufficient notice of the defendant's
impending arrest. Id. at 172.
On appeal, we reversed, finding the recordings and the officers' testimony
reflected only a short interval of time in which the defendant could have been
notified of his impending arrest. Id. at 175. We were "convinced that not all of
the warnings and the notification of arrest described by police officers could
have been given to defendant." Id. at 175-76. This led us to conclude the State
failed to prove the advance warning beyond a reasonable doubt. Id. at 176.
Because the arrest was found to be unlawful, a conviction for resisting required
the State to prove both the announcement and that the officers were acting under
the color of their official authority. Id. at 182. The conviction was therefore
reversed. Ibid.
A-1301-22 17 By the plain meaning of the statute, the announcement requirement is not
an element of the crime of resisting arrest that the State must prove beyond a
reasonable doubt in all cases. Rather, the State's failure to prove beyond a
reasonable doubt the announcement requirement was satisfied will provide a
standalone basis for the reversal of a conviction only where the arrest itself was
unlawful. Unlike in Kane, the arrest in this case is undisputed as lawful.
Therefore, the defense of unlawful arrest is not available to defendant, and so
whether the State proved a verbal announcement is not relevant to the analysis
of the particular facts of this case.
B.
Even though the announcement requirement is inapplicable to defendant's
lawful arrest, the State nonetheless bore the burden to show defendant acted
purposely, which necessarily includes proving beyond a reasonable doubt he
understood the attendant circumstances. The ability of an officers' words and
actions to impart that understanding, such that resisting the arrest could be
proven purposeful, has been explored by our courts.
In Branch, a plainclothes officer identified himself as police and told the
defendant to stop, but the defendant fled. 301 N.J. Super. at 321. The defendant
was tackled and was being placed under arrest when he resisted and pulled a
A-1301-22 18 weapon on the officer. Ibid. Branch challenged his conviction under N.J.S.A.
2C:29-2(a) because the detective did not specifically state, "You're under
arrest."3 Ibid. We rejected the failure to announce as a categorical bar to the
finding of the requisite mens rea, stating it "would only be one factor to be
considered in the overall sequence of events leading to the arrest." Ibid.
In State v. Ambroselli, the defendant was found walking through a
neighborhood with torn clothing and bleeding profusely from a head wound.
356 N.J. Super. 377, 381 (App. Div. 2003). When an officer attempted to speak
with him, the defendant swung at her and fled, and then swung at the other
officers she called for backup. Id. at 381-82. The officers subdued the defendant
with pepper spray and handcuffed him but did not specifically inform him he
was being placed under arrest. Id. at 382. The defendant was charged with both
aggravated assault and third-degree resisting arrest under N.J.S.A.
2C:29-2(a)(3), both offenses requiring the defendant to have acted purposely.
Id. at 383.
During the jury charge, the judge initially read language closely mirroring
the definition of "purpose" under N.J.S.A. 2C:2-2(b)(1), but then "added his own
3 This was argued not under the announcement requirement, but to attack the State's proof of a purposeful mens rea. 301 N.J. Super. at 321. A-1301-22 19 gloss on the definition: 'And again, this is not written in the law but you can
consider the definition of purposeful and maybe the contrary definition of by
accident.'" Id. at 385. We overturned the conviction in Ambroselli based on
these "fatally flawed" charges on the requisite mental state. Id. at 386. Given
the defendant's debilitated physical condition and considerable blood loss at the
time of the arrest, the possibility of jury confusion over whether the defendant's
mental state satisfied the requisite purpose mandated reversal of the convictions.
Id. at 388.
Here, both the municipal and trial courts found even without clear
evidence of a formal verbal announcement, defendant's responsiveness to some
of Trooper Lambert's English-language requests, as well as context clues and
signals, provided sufficient proof defendant understood an arrest was taking
place, and that he was guilty of resisting that arrest. Both courts also found
defendant's resistance to being placed in the patrol car, well after being placed
in handcuffs, supported his conviction of obstruction beyond a reasonable doubt.
Defendant's understanding "with respect to attendant circumstances,"
necessary for a finding of purposeful mens rea, could only be derived from
contextual clues. N.J.S.A. 2C:2-2(b)(1) (emphasis added). Essentially,
defendant argues he was mistaken about the facts of the attendant circumstances.
A-1301-22 20 A mistake as to a matter of fact, such as whether an arrest is taking place, can
serve as a defense if it "negatives the culpable mental state required to establish
the offense[.]" N.J.S.A. 2C:2-4(a)(1). "[E]ven an 'unreasonable' mistake, i.e.,
negligence, may negate the mental state required for criminal liability when . . .
purpose[] is required for conviction[.]" State v. Wickliff, 378 N.J. Super. 328,
334-35 (App. Div. 2005) (citing State v. Sexton, 160 N.J. 93, 105-07 (1999)).
Given the testimony and video evidence, the State could not prove beyond
a reasonable doubt at the point in the interaction when defendant turned to face
Trooper Lambert and broke the grip, his manifest purpose was to resist arrest.
The video evidence and audio recording capture defendant repeatedly telling
Trooper Lambert he did not understand his instructions during the sobriety tests.
When asked, "[d]id [d]efendant know you were placing him under arrest?"
Trooper Lambert replied, "That's unknown. That's up to [him]." Trooper
Lambert acknowledged he told defendant to turn around under the stated pretext
that he was conducting another field sobriety test. The video captures
defendant's apparent lack of understanding when Trooper Lambert grabbed
defendant's hands while defendant was faced away from Trooper Lambert and
then he turned to Trooper Lambert and asked "Qué pasó?" ("What happened?").
The audio and video evidence reflect the unbuttoning of Trooper Lambert's
A-1301-22 21 handcuffs after defendant broke the attempted grip, was turned back around,
placed on the hood of the car by Trooper Lambert, and after his hands were
restrained behind his back.
However, after Trooper Lambert handcuffed defendant, walked him
towards his police car, and opened the back door, there would be no similar
doubt as to defendant's understanding of the circumstances at that later point in
time. By the time of the interactions at the patrol car between defendant, the
passenger, and Trooper Lambert, defendant had been in handcuffs for over five
minutes. It is not reasonable to find he mistakenly believed he was not being
arrested at that point. Both lower courts credited Trooper Lambert's unrebutted
testimony concerning defendant's movements and the shaking of the dashcam
video as evidence defendant physically resisted being placed in the patrol car.
As succinctly stated by the Law Division judge, "[defendant's] conduct . . .
physically resisting the officer's efforts to place him in the patrol car . . . support
[defendant's] conviction beyond a reasonable doubt." Defendant's appellate
brief also concedes, "[i]t is undisputed that there was a physical scuffle between
Trooper Lambert and [defendant] around the time that both men had reached the
trooper's patrol car." As such, while the resisting arrest charge was not proven
A-1301-22 22 beyond a reasonable doubt, the conviction for obstruction was, by evidence of
his subsequent attempt to avoid being placed in the patrol car.
C.
Defendant next argues the Law Division erred by declining to apply
Marquez, 202 N.J. at 508, which concerned a defendant's ability to understand
the statutorily mandated consequences of refusing to submit to an alcohol breath
test, to charges of resisting arrest and obstruction. In Marquez, the defendant
was arrested for DWI. Id. at 489. The defendant spoke no English and
confirmed that to the arresting officer, who nonetheless read an extensive
statement, written in English and detailing the consequences of refusing to
submit to an alcohol breath test. Ibid. At trial, the State did not dispute the
defendant's lack of understanding. Id. at 490. He was convicted both in
municipal court and on de novo review at the Law Division for refusing to
submit to the test under N.J.S.A. 39:4-50.4(a), and we affirmed. Ibid.
Our Supreme Court reversed, finding both the refusal statue and the
implied consent statute, N.J.S.A. 39:4-50.2, "require proof that law enforcement
officials inform motorists of the consequences of refusal by conveying
information in a language the person speaks or understands . . . ." Ibid. This
conclusion rested on an analysis of the legislative intent behind both statutes and
A-1301-22 23 the plain meaning of "inform." Id. at 499-500 and 506-07. The Court
summarized the refusal statute as a requirement for officers to request drivers to
submit to a test and the implied consent statute as guiding officers on how to
make that request. Id. at 501.
The Court determined when the statutes are read together, a conviction
requires the officer to both request the test and inform the defendant of
consequences of refusal. Id. at 503. The directive that officers "inform" meant
"they must convey information in a language the person speaks or understands."
Id. at 507. Even though the conviction was reversed, the Court cautioned the
statutes should not be read to require the State prove a defendant's subjective
understanding of the warnings, only whether the defendant was "properly
informed in a language they speak or understand . . . ." Id. at 513.
Defendant argues the same concerns animating Marquez "should be
extended to non-exigent situations in which a Spanish-speaking individual is
about to be placed under warrantless arrest." The Court in Marquez
acknowledged where motorists did not speak English, "some other effort must
be made" to inform them of the consequences of refusal to submit to an alcohol
breath test, but it deferred to the Motor Vehicle Commission "to fashion a proper
remedy with the assistance of the Attorney General." 202 N.J. at 510-11. See
A-1301-22 24 also State v. Mejia, 141 N.J. 475, 503 (1995) (encouraging the Attorney General
to develop bilingual Miranda warnings).
Unlike the informed consent and refusal statutes at issue in Marquez, the
resisting arrest and obstruction statutes do not place affirmative duties on police
officers, except in the case of the "announcement requirement," which as we
discussed above, applies only to unlawful arrests. Additionally, as we have
previously recognized, arrests are fluid in nature, and detentions often pose
safety risks. See, e.g., State v. Witt, 223 N.J. 409, 411 (2015) (recognizing, in
the context of obtaining telephonic warrants, concerns about the "safety of
police officers and a car's driver and occupants detained on the side of a heavily
traveled highway or road"). It would be unreasonable to do what defendant
suggests and broaden the holding in Marquez to all roadside detentions. The
Supreme Court has not imposed such an obligation in its case law. See Witt,
223 N.J. at 414-15 (complicated exigent-circumstances tests "do[] not provide
greater liberty or security to New Jersey's citizens and . . . place[] on law
enforcement unrealistic and impracticable burdens" where officers are handling
"fast-moving and evolving events that require prompt action").
A-1301-22 25 III.
Finally, defendant renews his prior challenges to his sentencing, namely
(1) the court violated proportionality by imposing a fine for a traffic offense
higher than the fine for each of the disorderly persons charges; (2) the court
failed to give adequate reasons on the record for the sentence under N.J.S.A.
39:3-10 because State v. Moran, 202 N.J. 311, 328-29 (2010), required the court
to consider a number of factors before imposing the maximum punishment; and
(3) the court should have dismissed the minor charges and merged the resisting
arrest charge with the obstruction of justice charge.
Fines levied for convictions of disorderly persons offenses are statutorily
capped at $1,000. N.J.S.A. 2C:43-3. The fine for driving without a license is
also statutorily prescribed. N.J.S.A. 39:5-31. Where the Legislature has
prescribed penalties, "courts will not interfere . . . unless it is so clearly arbitrary
and without rational relation to the offense or so disproportionate to the offense
as to transgress the Federal and State constitutional prohibitions against
excessive fines or cruel and unusual punishment." State v. Smith, 58 N.J. 202,
211 (1971) (citing U.S. Const. amend. VIII; N.J. Const. art. I, § 12). No such
showing of excessive or cruel punishment is made here, and so defendant's
proportionality argument as to the monetary fines must fail.
A-1301-22 26 Defendant's challenge to the suspension of his driving privileges
misapprehends the statutory scheme applied by the court. Authority and
procedure for a court's revocation of driving privileges comes from multiple
sources: the Criminal Code, the Motor Vehicle Code and case law construing
it, and for convictions for driving without a license, the specific provision of the
Motor Vehicle Code found in N.J.S.A. 39:3-10(u).
N.J.S.A. 2C:43-2(c) authorizes the court to suspend the driving privileges
of a person convicted of a disorderly persons offense "in the course of which a
motor vehicle was used." The court is required to "consider the circumstances
of the violation, and whether the loss of driving privileges will result in extreme
hardship and alternative means of transportation are not readily available."
N.J.S.A. 2C:43-2(c). The court is also required to "state on the record the
reasons for imposing the sentence" as well as its findings related to any
aggravating and mitigating factors under N.J.S.A. 2C:44-1 to -3, which applies
to impositions of terms of imprisonment or probation as well as fines levied in
addition to sentences of imprisonment or probation. N.J.S.A. 2C:43-2(e).
Separately, N.J.S.A. 39:5-31 permits the court to revoke a person's driver's
license "where such person shall have been guilty of such willful violation of
any of the provisions of [the Motor Vehicle Code] as shall, in the discretion of
A-1301-22 27 the magistrate, justify such revocation." In Moran, our Supreme Court
addressed the meaning of "willful violation" in the context of a conviction under
N.J.S.A. 39:4-96, the reckless-driving statute. 202 N.J. at 324. The Court
distinguished willful violations from other violations as "a matter of degree" to
"ensure that municipal court judges invoke N.J.S.A. 39:5-31 only in . . . cases
that present aggravating circumstances." Ibid. The Court issued a directive to
municipal and Law Division judges to consider the following factors before
imposing a license suspension:
the nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or [dependents]; and the need for personal deterrence.
[Id. at 328-29.]
A-1301-22 28 Additionally, the Court mandated the judge "articulate the reasons for
imposing a period of license suspension" as "a further safeguard against
arbitrariness in sentencing." Id. at 329 (citing State v. Miller, 108 N.J. 112, 122
(1987)).
Finally, N.J.S.A. 39:3-10(u) describes the appropriate penalties for
driving without a license, stating:
A person violating this section shall be subject to a fine not exceeding $500 or imprisonment in the county jail for not more than [sixty] days, but if that person has never been licensed to drive in this State or any other jurisdiction, the applicant shall be subject to a fine of not less than $200 and, in addition, the court shall issue an order to the commission requiring the commission to refuse to issue a license to operate a motor vehicle to the person for a period of not less than 180 days.
Defendant argues the court was required to find aggravating and
mitigating factors prior to imposing a six-month suspension of his driving
privileges and the maximum statutory fine. Defendant relies on Moran to
support his contention. Defendant's argument conflates suspensions imposed
under the Criminal Code with those imposed under the Motor Vehicle Code.
Although defendant was ultimately convicted of disorderly-persons offenses, it
could not fairly be said that "a motor vehicle was used" when he purportedly
resisted arrest or obstructed justice simply because these offenses were
A-1301-22 29 committed after a roadside detention. Further, no imprisonment, probation, or
fine in connection with imprisonment or probation was at issue, so an assessment
of aggravating and mitigating factors under N.J.S.A. 2C:44-1 to -3 was not
required.
Rather, the suspension was issued in connection with defendant's proven
violations of the Motor Vehicle Code, which included N.J.S.A. 39:3-10. If the
court had revoked defendant's privileges based only on the speeding or
obstructed view violations, then the court would have been required to make the
individualized finding using the factors in Moran to determine whether
defendant committed "willful violations." However, because defendant was also
convicted under N.J.S.A. 39:3-10, and because there was no evidence he had
ever been a licensed driver in any jurisdiction, a fine in excess of $200 and a
six-month suspension was statutorily mandated by N.J.S.A. 39:3-10(u).
Therefore, even though an individualized Moran analysis normally applies
to any suspension imposed because of a motor vehicle violation, in this case, the
six-month suspension was a statutorily mandated outcome. Further, this
suspension would have lapsed even before the trial de novo before the Law
Division, and so defendant's challenge is moot. To the extent defendant is only
challenging the monetary penalty levied, a Moran analysis applies only to the
A-1301-22 30 suspension, not the imposition of a monetary penalty. The $507 fine levied was
properly greater than the $200 minimum.
Our careful review of the record reveals defendant's remaining arguments
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We therefore vacate the conviction and sentence for resisting arrest, N.J.S.A.
2C:29-2(a), and affirm the convictions and sentences for speeding, N.J.S.A.
39:4-38; driving without a license, N.J.S.A. 39:3-10; and obstruction of
windshield for vision, N.J.S.A. 39:3-74; as well as the summons for disorderly
persons obstruction of administration of justice, N.J.S.A. 2C:29-1(a).
Affirmed in part, vacated in part, and remanded for modification of the
judgment of conviction. We do not retain jurisdiction.
A-1301-22 31